In my post, I suggested that adding a fourth year of law school might be a good idea. (Not a popular idea, I know.) The comments I received were so good that I felt an additional post on the matter was in order. Check them out. Some key premises of the comments were these: why do we even need law schools at all? Aren't they just protectionist barriers to entry? Wouldn't society be better served if we allowed more people to practice law, and thus drive the cost down?

These are serious and very valid questions, and they deserve serious thought.

Much of the frustration with modern law schools does arise from the fact that they have a monopoly on entry into the law profession. The justification for this is that society benefits if we require lawyers to go through a demanding course of instruction before representing people in real life. Now, I do think there is some merit to that. But it is also true, as with any monopoly, that you get inefficiencies. Why is law school 3 years long when some of our nation’s greatest lawyers, such as Abraham Lincoln and John Marshall, only received very limited instruction in the law? Why don’t law schools have opportunities for distance learning? Good questions indeed.

Let me concede that there are some people out there who would make excellent lawyers without ever going to law school. There are also probably some people out there who would make excellent doctors without going to medical school—but I don’t want them operating on me. Such superstars are the exception, not the rule. I myself benefited enormously from law school—from the culture of law it instilled in me, from the debates, from the opportunity to learn about the law in depth from both a modern, practical point of view and from a more historical or jurisprudential one. You simply do not get that by taking the bar. Or reading a book.

But what about distance learning? (Again, check out the comments to my previous post.) Should we do that? Based on my experience as a law professor, I believe there is enormous benefit to live, in-class discussion. Distance learning hinders that. But again, it is a matter of balance. Many law schools have night divisions that do not interact with the day divisions—and this does not bother those schools! So if we are willing to compromise this dynamic in one aspect, I think we should compromise it in another and allow distance learning, under certain conditions. In fact, I would not be surprised to see this happen in the next 5 years. After all, law schools are supposed to be engaged in public service. And enabling qualified people to obtain JDs and pass the bar is public service.

But back to the main point: should there even be law schools? Like any institutions, law schools are not perfect. But it is my experience in teaching—and in practice—that they are necessary, despite their faults. My reasoning comes down to this. American high schools should be teaching students to write, research and think. Yet many high school graduates do a poor job of all three, in opinion. And many college graduates, for that matter. These are not stupid people, mind you. To the contrary, many are extremely bright. They just haven’t been taught properly. We live in a society that values action over reflection, success over education, and it shows in our educational system.

So what that means is that law schools, for better or worse, are sometimes the last bastions of formal education for people before they become lawyers. That is a critically important role to play. And that, in a nutshell, is why I gave up my life of comparative wealth and luxury in private practice for a life in teaching in a place far away from friends and family.

Any other comments on this are welcome. The proper role of law schools is one of the most difficult, and most important, questions that law schools face. And we should be working hard to craft the best answer possible and make sure that law schools are not just barriers to entry. That means the more dialogue, the better.

15 comments:

jmg
said...

You wrote:=================Let me concede that there are some people out there who would make excellent lawyers without ever going to law school. There are also probably some people out there who would make excellent doctors without going to medical school—but I don’t want them operating on me. Such superstars are the exception, not the rule. I myself benefited enormously from law school—from the culture of law it instilled in me, from the debates, from the opportunity to learn about the law in depth from both a modern, practical point of view and from a more historical or jurisprudential one. You simply do not get that by taking the bar. Or reading a book.===============

This is the equivalent of the "possible ticking bomb justifies torture" hypo so popular today (a silly but superficially attractive syllogism). Hang around estates lawyers and you will hear "Sure, you can write your own will; right after you do your own brain surgery."

The question isn't whether any rube ought to be able to hang out a shingle and practice law; it's whether the JD should have supplanted the long (centuries) tradition of apprenticeships (clerkships). In law school, it is entirely possible (common, actually) to succeed with high honors while never reading, much less drafting, an actual contract or helping an actual person. (Quite the opposite; the "clinics" attract the bottom students, while law reviews and moot courts -- and the big $$ opportunities that they provide -- attract the "top" students. Just as with teaching, the further one is able to get from the paying customer, the more one is paid.)

Look, we can agree that law schools should not be banned outright and that law school is not automatically harmful to those who have $80-$100k to invest in professor's boats, don't have families to support, and whose socioeconomic status makes them likely to score well on an LSAT.

And, indeed, the dormant commerce clause, the Rule Against Perpetuities, and the hearsay exceptions can be great fun if you have the right sort of mind.

But like all lesser coin, law schools drove out the genuine article, real instruction in the law from practicing attorneys through clerkships (reading law), culminating in the clerk's ability to enter the profession through individual mentoring. That is a great loss, because the loss of the solid alternative to law schools is what caused law schools to lose their way.

True, the risk with only clerkships is that the profession would become an even greater old boys club. That is, without law schools, the profession would be even more homogenous than it already is (as people are most likely to pick clerks to read law who are like themselves, same social class etc.). So we need law schools; that way, the Guild mentality can't take hold among lawyers and create the same barriers to entry. (And, if clerkships were the only route to the bar exam, clerks would be even more ripe for exploitation.)

But, just as the presence of the law school alternative would keep clerkships honest, so would the ability of students to forego law school make law schools honest. The classroom socratic method is merely a watered down substitute for direct, personal instruction by a practicing attorney.

Finally, the idea that law schools serve as the backstop for a failing pre-law academic system is hilarious. It's kind of like the joke about Ole and Sven suggesting that, because the opening day of hunting season is so crowded it should be moved back a day or two. Where I work (in the area of appeals) we daily see "attorney work product" that, on first examination, appears to be from a pro per. These attorneys--100% law school grads, most top students--are not persuasive evidence of the value of law school as a backstop for failing undergrad programs.

Great post by Professor Bowman and equally-great comment by JMG. I will only add that perhaps the disappointment with new attorneys reflects not so much inadequate J.D. training as much as an absence of "attorney life experience." I recognize that more opportunities for law students to engage in direct, practical work would be beneficial (and some law schools appear to recognize that given the growth of clinical programs -- at Harvard Law School, for instance, the clinical program is taken very seriously by both faculty and students and it does not only attract the "bottom" students, some of the best students partake in it), but I'm not sure any kind of "training" can replicate the real thing. Like playing sports, sometimes practice is no substitute for "actual games."

Also, even if the existing framework for legal education is as deficient as you both seem to conclude, wouldn't the better attorneys still distinguish themselves? I mean, is there really a public outcry that the market is somehow flooded with incompetent attorneys? Sure, some attorneys may not be likeable; some may take on cases and clients that irk others, but I really don't hear any kind of clarion call that there is a lack of competence.

Maybe the current system is working fine and doesn't need a massive over-haul.

I wrote the same reply in Prof McCann's Sports Law Blog:I worked in an internship last summer. Not one thing law related had any connection between the job and law school. You can argue law school helps you think better and it relates that way. But nothing law related. My boss told me before my job that I would not learn any of this (trpe of work) in law school, and even said I would know more about this field than several proffessors at my school. Law school does not prepare you properly for the "real" law world. Law school does a good job preparing you with a full time schedule, keeping you busy, because law school is like a job without the paycheck.

MM wrote:========Maybe the current system is working fine and doesn't need a massive over-haul.========

Well, yes. The current system is working fine--for the people who run it. Many, many, many lawyers are very, very, very well paid. They form a quasi-aristocracy, able to afford the finest homes, private schools (in case the publics in the suburbs aren't up to snuff), health clubs, nice vacations and, most important of all, tuition for their kids so that kids can continue the family "meritocracy" (based on the accurate picking of the best parents).

The question, however, ought not to be whether the system works just fine for attorneys. The question ought to be whether the current system produces value to society in any way proportionate to the value received (cost imposed on society).

America does not suffer from too many lawyers any more than it suffers from too much justice. What America needs is enough lawyers to make legal help affordable to American people and not just American companies.

I figure that, roughly, most lawyers ought to be making on the order of what experienced elementary and secondary school teachers are making - which is, of course, considered shocking penury for an attorney.

That is precisely the problem--we lavish rewards on people who do mainly unproductive and often deeply unsatisfying work that, in most cases, adds nothing to the net national well-being.

Meanwhile, a professional with a master's degree and thirty years experience in teaching is considered overpaid at $55k/yr.

And, meanwhile again, Justice Roberts' joins the Court and immediately dons the Rehnquist hairshirt and cries poor to Congress about how it's simply awful to have to have to subsist on what a US federal judge makes. (Isn't it funny how so many staunch advocates of free market economics forget all that when discussing judicial pay, conveniently overlooking the long line of capable people who think the pay is just fine.)

The bottom line is that the hegemony of law schools makes no essential contribution to the betterment of society; rather, it hurts society by artificially restricting access to the profession whose members should be much more numerous than they are today and whose salaries should be much lower.

In fact, few things would be as good for America as if the salary of lawyers went down so far that more of the brightest folks become elementary and high school teachers and more of the pedestrian intellects become lawyers. Today, we have many brilliant people doing mind-numbingly boring, soulkilling work; meanwhile, teacher ed programs are full of the least capable students, who then become teachers.

We need to reverse that and, at the same time, make sure that everyone who needs a lawyer for a civil problem can afford one. Ending the law school monopoly on entry to the legal profession is the only way to make it happen. America needs more mediocre lawyers --- lots more---and more brilliant teachers.

Let’s tone down the rhetoric for a minute and focus on what we agree upon here. As I see it (correct me if I am wrong on this), there is a general consensus that:

1. Law schools are not worthless and do serve some educational purpose.

2. There is often a disconnect between what is learned in law school and the skills needed to succeed as a lawyer.

3. Clinical experience, either by internship, externship, clinics, or some sort of apprenticeship is incredibly valuable for teaching lawyers-to-be both about the substance of the law and how to practice law.

4. Law schools represent a monopoly on entry into the practice of law.

5. Students too often leave law school with little idea about what it is really like to practice law or without having experienced the basic practicalities of practicing law.

Now, having gotten that out of the way, I want to focus on three points. I could say more, but let’s limit it to that. And then I will let whoever wants to have the final word.

FIRST POINT: I spent nearly a decade in practice prior to becoming a law professor. I fully understand how different law school and law practice are. In fact, it informs my teaching.

And yet there is a commonality between the two. As Tommie aptly noted in his comment, the heavy workload in law school does prepare you for practice. It makes you sink or swim. Just like the real world. You have to figure out where your professor is coming from and what she or he wants. And adjust accordingly—just like with bosses or clients in practice. Yes, it is artificial, but the school does get to compare apples to apples, generally speaking, and see who is better at it. And in the meantime, you do learn about the law and how to practice it. At least in my class you do. Interestingly, students with real world experience can have an advantage in dealing with this aspect of law school.

It is not a perfect system at all. But interestingly, employers often like it. Law firms and companies want a way to rate people. Is that the elite club at work? Perhaps. But even at more regional schools, like Mississippi College School of Law where I teach, employers pay attention to grades. And not just the big firms.

In contrast, clerking for practitioners is inevitably more ad hoc and varied in quality than the law school experience. As far as practitioners go, I have seen a few who are superb mentors. But many of them—well, they’re just not. Many are too busy, and some are too indifferent. I’ve been there, and I fully appreciate how difficult it is to juggle the demands of clients with the time needed to engage in meaningful mentoring.

Plus, many practitioners are unavoidably specialists. How does a real estate lawyer train someone in the basics of constitutional law? And for that matter, how do we choose which practitioners can mentor and who can’t? Or should everyone be allowed to? And if that is the case, how does that increase quality of lawyering and legal education? (FYI—see my related 12/7/05 and 11/29/05 posts on law firm mentoring.)

SECOND POINT: On a personal note and for the record, I do not have a boat. I cannot afford a boat. And I do have kids, thank you very much. I voluntarily left an extremely lucrative practice that I enjoyed in order to teach, because I felt a calling. And the legal teaching market is incredibly competitive. Every year thousands of people try to land tenure-track teaching positions at law schools, and I think roughly 5% succeed. It’s not because the hours are easy, or the pay is great. I work just as much—hour for hour—as I did in practice, and for far less pay. But it is an incredibly rewarding, meaningful way of life.

So with this influx of qualified, dedicated people into law teaching—and yes, most are highly qualified to teach and research—I think legal education has improved over the past decade and will continue to do so. For law schools, it is a buyer’s market. Even regional schools are hiring incredibly sharp people. And the combination of this and a greater focus on clinical education is a powerful one-two punch. As Professor McCann correctly points out, law school clinical programs are decidedly NOT always filled with the lower end of the class.

THIRD POINT: Why argue that lawyers should be paid less? Why not argue that teachers (other than law professors, I suppose) should be paid more? I’m on board with that. The point is that education itself is intrinsically beneficial.

As for law school, it provides a general education in the law, which is the embodiment of our societal norms and values. Law—even that involving high theory—is relevant to our daily lives. Just watch the Alito hearings. So it is not such a bad rule that someone who wants to practice law has to learn about basic legal theory and the history of the law before having the right to represent people as a lawyer. You won’t get that in a legal apprenticeship.

The real debate, then, should be this: how can we lower the cost of law school (and other higher education), and how do we incentivize (subsidize?) lawyers to engage in work that we agree is societally beneficial? The law is a service profession, after all. We are here to serve. But to conclude that law schools are unnecessary? We already have a serious problem in this country with our educational system. Reducing formal education further is not a solution I am willing to entertain.

You wrote:----------We already have a serious problem in this country with our educational system. Reducing formal education further is not a solution I am willing to entertain.------------Then we need go no further. If you are only willing to permit one result, the problem is solved. Add a fourth year (why not a fifth? - LLB's for all).

I so want to note that it is not I who have suggested that there is anything "wrong" with the quality of law school grads. I think firms who gripe about poor quality of grads are either saying that their hiring practices are bad (probably true) and that their "training" (if any) sucks (also probably true). Certainly genus homo is not particularly less capable in the early 21st C.

So I don't give any credence at all to whining about quality. Complaints by the old about the young going to hell in handbaskets predate handbaskets. (If anything my argument is that the quality of new entrants is too high--the social value of most lawyering just not high enough to justify the talent we throw at it.)

But, regardless of quality, my beef is with the local vs global optima created when one group -- e.g., lawyers -- is allowed to set up a cartel (the ABA accredited law schools) that restricts supply of a needed good (lawyers) required by society to such an extent that the cartel members capture benefits all out of proportion to the overall contribution (quality) added by the cartel's practices. That's all.

The person who cannot afford any lawyer is ill-served by knowing that the lawyer she couldn't afford is of the highest quality.

I mention lawyer wealth simply because it is an exact indicator of the success that the organized bar has had in putting the needs of lawyers first, ahead of the public's need for affordable legal services (valuing the local optima over the global optima).

I do want to suggest a thought experiment: imagine the world if we didn't have UPL laws to enforce our monopoly. (And, therefore, law schools couldn't exact three years and $100k toll on the way to the bar exam without having to show a payoff for that investment.)

I like to imagine a rule that state bars could not enforce the UPL laws unless they could show that at least 80-90% of the civil legal needs of the poor in their state were met (and 100% of the criminal defense needs).

Getting that level of service to society would require a big change in the profession. I think it would take opening up one or more other paths to the bar. You seem to think otherwise.

Fine, let's meet back here in ten years. I predict that when we meet again we will have not advanced an inch towards better provision of legal services to the poor; the ABA Journal will still be publishing endless articles on the importance of pro bono work, while lawyers in practice will be doing even less pro bono work than now as the wave of boomer lawyers stops practicing and there will be even fewer attorneys in legal aid settings. The articles about student debt load will have even more eye-popping numbers.

You can be anything without or prepare for any job without any formal schooling. Some books from the Library and a set course is enough. Learning is self-inspired. But I believe schools are important becuz it tries to expose the learners to everything society feels is important to learn. I think law school is a good thing. If someone really likes the law they can always study beyond what law schools teach. But in the end they will at least know and, hopefully, learned a certain set of basic intellectual tools that will help prepare them for the real lawyer world.

"The real debate, then, should be this: how can we lower the cost of law school (and other higher education), and how do we incentivize (subsidize?) lawyers to engage in work that we agree is societally beneficial?"

Great post, professor. I've have been reading tirelessy on the topic of law school education, and this is one of the best blogs I've come across so far.

On the subject of the cost of law school and how to make it cheaper, does anyone have any comments? I would point out that my 7/31/2006 post on "Baumol's Cost Disease" is relevant to any discussion of why education seems more expensive today than in the past.